IN THE CASE OF:	 

	BOARD DATE:	 18 September 2008 

	DOCKET NUMBER:  AR20080012537 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his general discharge under honorable conditions be upgraded to honorable. 

2.  The applicant states that he takes full responsibility for his actions.  If he committed a crime, then he should be punished, but the punishment should fit the crime.  He states no crime was committed.  The error or injustice is the final sentence and discharge that he received.    He believes that the sentence and discharge do not fit the circumstances surrounding the accident.  The local authorities were going to release him with fines.  He had insurance which would pay for all of the damage.  Regardless of what the charges said, there were no injuries.  The military took jurisdiction.  His appointed counsel told him that he would not be confined or discharged if he pleaded guilty to reckless driving.  The discharge really affected his life.  It has been hanging over him for a long time.  He feels that this is an unfinished chapter of his life that he wants corrected.  He wants the option of serving his country again and would like to reenlist in the Army and eventually retire.  He wants to do this for himself, his son and daughter. 

3.  The applicant provides copies of his Certificate of Release or Discharge from Active Duty (DD Form 214), summary court-martial documents, letter of appreciation, two certificates of achievement, and an Army Achievement Medal certificate.   



CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 30 December 1987, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty (MOS) 77F (Petroleum Supply Specialist).

3.  On 12 July 1988, the applicant was assigned duty as a petroleum supply specialist with Headquarters and Headquarters Company, 2nd Armored Division (Forward), in the Federal Republic of Germany.

4.  On 6 April 1989, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for willful failure to obey a lawful order.  The punishment included a forfeiture of $189.00 pay per month for 1 month (suspended), and 14 days of restriction and extra duty.

5.  On 18 May 1989, the suspended punishment of $189.00 forfeiture of pay per month for 1 month was vacated.

6.  On 23 May 1989, the applicant accepted NJP for willful and wrongful discharge of a firearm under circumstances that endangered human life.  The punishment included reduction to pay grade E2, a forfeiture of $189.00 pay per month for 1 month, and 14 days of extra duty and restriction.

7.  On 9 September 1990, the applicant was charged with drunken driving and failure to yield the right of way, resulting in a multiple car accident and loss to private and government property.  


8.  On 26 October 1990, the applicant was convicted by a summary court-martial of reckless and wanton driving.  He pled guilty, except to the words, “and consuming alcoholic beverages.”  His sentence consisted of confinement for 
20 days, reduction to pay grade E-1, and a forfeiture of 2/3 pay for 1 month.  There is no evidence showing he served any of his sentence to confinement.

9.  On 29 October 1990, the applicant’s commander notified the applicant of his intention to recommend him for separation due to the commission of a serious offense.  The commander does not provide any further discussion but does include a copy of the applicant’s summary court-martial for reckless and wanton driving.  

10.  The applicant consulted with counsel concerning his rights and waived consideration of his case by an administrative separation board.  He elected to make a statement in his own behalf, but that statement is not available in the records.  

11.  On 1 November 1990, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, Chapter 14, for misconduct due to the commission of a serious offense.   

12.  On 17 November 1990, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued “an Other Than Honorable Discharge.”

13.  On 28 November 1990, the applicant was discharged under honorable conditions.  He had completed 2 years, 10 months, and 29 days of creditable active service, and he had no lost time.

14.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

16.  Army Regulation 635-200 further provides, in pertinent part, that the misconduct is considered a commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Uniform Code of Military Justice.

17.  Under the UCMJ, the maximum punishment allowed for violation of Article 111 for drunken driving, without injury, is a punitive discharge and confinement for 6 months.

DISCUSSION AND CONCLUSIONS:

1.  The record shows the applicant was charged with drunken driving and failure to yield the right of way resulting in a multiple car accident and loss of personal and government property.  Even though he pled guilty to a lesser charge, the circumstances of his offense clearly constituted a serious offense.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  However, it appears he received a general discharge, under honorable conditions, and not a discharge under other than honorable conditions, as directed by the convening authority.  

3.  In keeping with the Board’s policy of not making an applicant’s record worse than it was prior to his application, no action should be taken to correct his discharge to reflect the intentions of the convening authority.

4.  While the applicant’s desire to continue in the service to his country is commendable, such desire is not a justifiable reason for upgrading a discharge.  Furthermore, the applicant’s discharge does not prevent him from requesting a waiver for reenlistment.   

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X_____  ___X____  ___X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.





__________ X_    _______   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20080012537



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